August 31, 2006

Cheapskate PTO

There
has been acrimonious disagreement at the Patent Office over the Millennium
Agreement, a 2001 contested contract that was supposed to maintain a 10%-15% pay
scale differential between examiners and your average government bureaucrat; the
point being, to retain highly educated and skilled examiners, thus minimizing
turnover and maximizing patent quality. It hasn't worked out that way, because
agency management reneged.

August 30, 2006

Obviousness Aligned

One
might get the impression, for all the ruckus over KSR v. Teleflex in front of
the Supreme Court, that 35 U.S.C. §103(a), the prior art obviousness clause, is
broken. Not so. §103 is badly drafted, but it has teeth as currently interpreted
by the Appeals Court. If you think its teeth need further straightening, consider this
orthodontics case: Ormco v. Align (CAFC
05-1426).

August 29, 2006

Impermissible Hindsight

Unbiased rational logic is a rare bird. Our
minds offer a veneer of abstraction processing over a reptilian brain bathed in
emotional opium. With regard to patent law, the bias
towards impermissible hindsight in denigrating invention is incontrovertible.
To wit, the vast majority of amici briefs in
KSR v. Teleflex have been displays of wishful thinking at best, corrupt rhetoric at
worst; regardless, confusion of delusion that hindsight can be hindered by
anything other than objective evidence.

August 27, 2006

Blackboard Rattles

The
Washington Post reports today "an angry backlash from the academic computing
community" for Blackboard
asserting its freshly minted
6,988,138 against
Desire2Learn. The worry is, of
course, the broad claims of '138. Not reported is whether the academic computing
community has enrolled for anger management help.

August 25, 2006

Patented News Vans

This
is but the first shot of what may become an all-out patent war on news vans:
those mobile TV studios-in-a-van, with a satellite uplink, for on-the-spot news
coverage. Indiana-based Trans Video Electronics (TVE) sued
Echostar Tuesday in Northern California for infringing
5,903,621 & continuation
5,991,801. The entire TV news business is worried.

USPTO Plan

Average
patent pendency is now at 27 months, with high-tech wait
times nearly double that. Some inventors have waited 12 years before getting
their patent grant. There is a serious shortage of examiners, and turnover is
high: only 45% of current employees have been there for over five years. But
the
patent office has a plan for the next five years.

NetFlix Rebuffed

Netflix
sued Blockbuster for patent infringement in April, and
Blockbuster retorted in countersuit that Netflix was just attempting
monopolization via unenforceable patents; unenforceable owing to inequitable
conduct: that Netflix didn't disclose known prior art. Netflix tried,
unsuccessfully, to get the judge to dismiss the countersuit.

Timeline Grinds Microsoft

In
1999, Microsoft took a limited license with Timeline for its patented database
technology. The scope of that agreement has been contentious, the term
"agreement" used loosely, as Timeline & Microsoft have wrangled in court over it
ever since. Now Timeline has terminated the license, accusing Microsoft of
breaching its terms by inducing infringement, and is suing Microsoft for
damages.

August 21, 2006

Sailing Towards Patent Reform

The
strongest push for patent reform came from large computer technology companies; as
serial patent infringers, troubled at continually facing the prospect of
injunctions granted by the CAFC nearly automatic like a dog. The solution worth
bribing for - get Congress to pass a new law gutting patent enforcement. Then
came the Supreme Court in
eBay v. MercExchange, "case law" being the accurate euphemism, which took
the wind out of the sails for legislative patent reform.

August 20, 2006

Irreparable Harm

In
the months following the
Supreme Court eBay v. MercExchange decision, recent rulings demonstrate a
revised trend in granting injunctions, most notably recognizing marketplace
clout. Granting a permanent injunction to TiVo against competitor EchoStar,
though stayed for the time being, illustrates the power injunctive relief can
provide.

August 18, 2006

Tissue Issues

Cook
Biotech, exclusive licensee, and Purdue Research Foundation, owner of
5,554,389, sued ACell for infringement. In the appeal (CAFC
05-1458), there was
a significant issue of claim construction, an interesting insight into seeking
damages, and an applied corollary to the "all limitations" rule in figuring
infringement under the doctrine of equivalents.

August 15, 2006

Carded

In
a classic case of overreaching, E-Pass
Technologies was shot down for the second time for trying to pose a
multi-function electronic card, claimed in
5,276,311, as a personal digital assistant (PDA), first suing Palm
unsuccessfully, then Microsoft and HP. In the Southern District of Texas, Judge
Hoyt ruled in favor of Microsoft & HP, that PDAs were not "cards," that
non-infringement was so obvious as to be a matter of law, and thus granting
summary judgment.

August 10, 2006

State Immunity XI, Take 2

The
University of Texas sued 48 cell phone companies in the Western District of
Texas for infringing
4,674,112, which claims predictive typing. Tegic Communications, a
Washington state company that sells the software for 39 of the 48 companies,
filed for declaratory judgment in the Western District of Washington. The
University sought to dismiss the case in Washington on several grounds,
including state immunity from suit in federal courts under the 11th Amendment.
Case dismissed. Upon appeal, same result (CAFC
05-1553).

August 9, 2006

Protecting its Own

By
the power of the XI Amendment to the Constitution, the United States indemnifies
its states. Protected by the Constitution, a state may infringe a patent without
practical remedy afforded the patent holder, the Federal Appeals Court
affirmed today (05-1440).

August 8, 2006

Big Media Blowout

In
one of the smaller ironies limping around, Big Media went bust, and the creditor
clean-up crew is
trying to scrape some revenue out of selling
6,385,592
and a continuation application; a bit shabby offering in lack of proper
maintenance, but potential exists to rock e-commerce companies that offer
personalized advertising.

August 7, 2006

Norwegian Wood

To
say that Norwegian Ole K. Nilssen went about it the wrong way would be
understatement. Though not found guilty of unclean hands, the man is a disgrace.
Pray tell, I am referring to five kinds of inequitable conduct. Is there a
Guinness record for this sort of thing?!

August 5, 2006

Senate Patent Gutting Bill

Anne Broache of CNET News.com waxes optimistic by reporting that "the U.S.
patent system could be inching closer to an overhaul long desired by the
technology industry," but otherwise gives a good synopsis of the dead-on-arrival
Hatch-Leahy bill, which seeks to eviscerate patent enforcement. Could be a good
calling card to solicit campaign contributions, but thank goodness these
corporate toads' efforts are for naught, at least this year.

Selective Memory

Reportage
is a tricky business. Situations are often not as they first appear. Corruption
being endemic, intrinsic to human nature, news and history often prevail from
power, either to enforce or deny. On that happy note, we turn to the domestic
computer DRAM market, which seems to be a large-scale exercise in manipulation
all around.

August 4, 2006

Bad Deceiver

In Bayer AG v. Housey Pharmaceuticals, today the U.S. Court of Appeals (CAFC
06-1083) affirmed
that Dr. Gerard M. Housey is a lying weasel, his four patents
4,980,281;
5,266,464;
5,688,655; and
5,877,007 voided for inequitable conduct. This guy made a seriously lousy
impression on the court.

August 3, 2006

Dilbert at the PTO

As
a confidential source inside the patent office put it, "When I worked in the
private sector, I might not have always agreed with management, but at least I
saw evidence of some consistent internal logic for their reasoning and decision.
But here at the PTO, it's like working in a live-action
Dilbert cartoon, although with a more
relaxed dress code."

August 2, 2006

Dependent Claims

Pfizer
sued generic drug maker Ranbaxy for
infringing patents related to Pfizer's blockbuster, cholesterol-lowering
Lipitor®.
Ranbaxy was found to have infringed, which it appealed, and lost on one of the
asserted patents. But the interesting part of today's CAFC ruling (06-1179),
where Ranbaxy prevailed,
concerns statutory definition of dependent claims under 35 U.S.C. § 112, ¶ 4,
which requires that a dependent claim narrow the scope of the claim upon which it
depends.

Sneaky Rambus

Rambus
has been enforcing its memory patents against semiconductor companies,
racking up royalties. The wondrous trick was that the claimed technology was
rolled into the standard for computer memories. Today the U.S. Federal Trade
Commission ruled that Rambus knew just what it was doing, and thus unlawfully
gaining monopolistic rent, as economists put it, for four memory chip
technologies.

Ericsson Unleashes on Samsung, Again

Filing
in the Eastern District of Texas Friday,
Ericsson slammed Samsung with another infringement suit, asserting 11 mobile
phone patents, in a continuing string to sting the Korean company into
submission.

Sponsored by

"A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. The analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." - SCOTUS in KSR, 2007 -

"Words ought to be a little wild, for they are the assault of thought on the unthinking." - John Maynard Keynes -

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